US Attorney General Eric Holder announced last week that the Civil Rights Division of the Department of Justice would be taking additional steps to investigate and address police and community relations in Ferguson, MO. So, what does that actually mean and what should those in and outside of Ferguson expect next?
Here are five important points to consider as the DOJ moves forward:
1) What are they actually going to do?
Attorney General Holder announced two important initiatives, largely dealing with Ferguson and the surrounding St. Louis county police department. The first is an investigation into a potential pattern or practice of law enforcement practices in Ferguson. As part of this investigation, a team of special litigators will be interviewing residents of Ferguson regarding their experiences with local law enforcement as well as pouring over tons of documents in order to determine whether the empirical data matches whatever anecdotal evidence is found. They will also likely interview past and present members of law enforcement to obtain inside information not always documented. Additionally, there will be a collaborative effort between the DOJ’s COPS program (Community Oriented Policing Services) designed to develop collaborative measures between citizens in the Ferguson community and local law enforcement agencies in order to help rebuild the broken trust which runs so deeply among Ferguson residents.
2) But, weren’t they already involved with investigating Mike Brown?
Yes, but this is bigger than just Mike Brown. The Department of Justice is limited in whatever civil rights charges it could bring against Darren Wilson. They cannot, themselves, charge him with criminal murder in the way that the Missouri state’s attorney office or local prosecutors could. Rather, they are limited to civil rights statutes which essentially require a showing of excessive use or abuse of force by law enforcement. Those charges are different than what would be brought against Wilson on a local or state level and this investigation is far more expansive because it deals with the entire Ferguson police department. The notion here is that the problem of discrimination and questionable police practices may be a systemic one, not limited to just Wilson or a handful of other officers, in which case broader remedies and more extensive relief is required.
3) What is “pattern or practice," anyway?
Pattern or practice is a legal doctrine which essentially means that whatever discrimination that took place was the inherent “policy” of the business/workplace. It appears in an employment context often where there is rampant sexual or racial harassment and discrimination which goes unchecked by management and supervisors. The idea is, as the name suggests, that there existed a pattern or practice of discrimination so prevalent and frequent that it was almost an unspoken policy as part of a given workplace. Meeting the standard isn’t always easy because while case law has said what is required in a qualitative sense, it doesn’t actually articulate how that can be calculated or quantified. However, if a plaintiff can successfully establish that a pattern or practice of discrimination exists, it essentially means that there is no question of whether the workplace is liable. The only question is the nature and extent of relief which the situation commands.
4) What happens if the investigation turns something up?
Any number of things, depending on how severe the findings. Most certainly a lawsuit could and might likely ensue. This would have two functions: 1) to provide monetary relief for those whose rights were violated by any systemic discrimination occurring by Ferguson police, and; 2) to secure injunctive relief for other Ferguson residents and establish new procedures for training in order to begin to eradicate discrimination by the Ferguson police department. There is also the question of accountability. If there is found to be rampant and widespread discriminatory practices among the Ferguson police department, the question will then become who among those empowered to and responsible for preventing this from happening dropped the ball? They might also find themselves on the hook as part of a law suit, depending on how egregious or intentional their negligence and could likely be out of a job as well.
5) This is great for Ferguson, but what about everywhere else?
There is no secret that our community faces abuse of discretion by law enforcement at disproportionately higher numbers as compared to other ethnic groups across the country. Given that, it’s unlikely that Eric Holder will be flying in with his super cape to open up investigations in every city, USA. However, we should be encouraged that this administration is at least sensitive to the fact that there is a trust deficit between communities of color and law enforcement and is committed to doing what they can to address it and ensure that the criminal justice system moves closer to one that is fair for all. What does that mean? At a minimum, local police forces are watching this closely because they don’t want to be next. Already, even in New York, there has been a noticeable and obvious effort to improve NYPD relations with the surrounding communities. As a friend remarked about the police presence during a recent march on Staten Island, NY “It’s like the entire NYPD went to charm school.” Not quite, but nobody wants to deal with a federal investigation into their department’s practices. Hopefully, the DOJ’s increased involvement in Ferguson will serve as a much needed warning for police departments everywhere.
Charles F. Coleman Jr. is a former Kings County (Brooklyn), NY prosecutor and federal trial attorney specializing in civil rights. Follow him on Twitter @CFColemanJr.